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Amicus Brief of the National Conference of State Legislators, Even Though the State Itself Did Not Make That Argument); Kansas V

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Amicus Brief of the National Conference of State Legislators, Even Though the State Itself Did Not Make That Argument); Kansas V Nos. 11-11021 & 11-11067 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT STATE OF FLORIDA, by and through Attorney General Pam Bondi, et al., Plaintiffs-Appellees/Cross-Appellants, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants-Appellants/Cross-Appellees. _______________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA _______________________ BRIEF AMICI CURIAE OF MINNESOTA LEGISLATORS AND NORTH CAROLINA LEGISLATIVE LEADERS IN SUPPORT OF PLAINTIFFS-APPELLEES/CROSS-APPELLANTS _______________________ REBEKAH N. PLOWMAN HANS F. BADER NELSON, MULLINS, RILEY Counsel of Record AND SCARBOROUGH COMPETITIVE ENTERPRISE Atlantic Station, 201 17th Street INSTITUTE Atlanta, GA 30363 1899 L Street, NW, 12th Floor (404) 322-6111 Washington, D.C. 20036 (202) 331-2278 NOAH H. HUFFSTETLER, III [email protected] NELSON, MULLINS, RILEY COUNSEL FOR AMICI CURIAE AND SCARBOROUGH GlenLake One, Suite 200 4140 Parklake Avenue Raleigh, NC 27612 State of Florida, et al. v. US Department of Health & Human Services, et al. Nos. 11-11021 & 11-11067 RULE 26.1 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1-1, amici make the following disclosure: each amicus joining in this brief is a government official. None has a parent corporation, subsidiary, or affiliate, and none has issued shares or debt securities to the public. As a result, no publicly held company owns 10 percent or more of the stock of any of the amici. Counsel certifies that he believes that the Certificate of Interested Persons filed by Appellees is complete, with the following additions of the amici curiae represented in this brief, and their attorneys: The Amici Curiae represented in this brief: Sen. Philip E. Berger, President Pro Tempore, North Carolina Senate; Rep. Thom Tillis, Speaker of the North Carolina House of Representatives Sen. Harry Brown, Majority Leader, North Carolina Senate Rep. Paul “Skip” Stam, Majority Leader, North Carolina House of Representatives Rep. Kurt Zellers, Speaker of the Minnesota House of Representatives Rep. Matt Dean, Majority Leader of the House of Representatives The following members of the Minnesota House of Representatives: C-1 Rep. Torrey Westrom Rep. Doug Wardlow Rep. Steve Drazkowski Rep. Kelby Woodard Rep. Pat Mazorol Rep. Dan Fabian Rep. Kurt Bills Rep. Ron Shimanski Rep. Mary Kiffmeyer Rep. Larry Howes Rep. Glen Gruenhagen Rep. Chris Swedzinski Rep. King Banaian Rep. Bruce Anderson Rep. Kathy Lohmer Rep. Debra Kiel Rep. Paul Torkelson Rep. Mike Benson Rep. Paul Anderson Rep. Duane Quam Rep. Bruce Vogel Rep. Bud Nornes Rep. Tony Cornish C-2 Rep. Ernie Leidiger Rep. Morrie Lanning Rep. Joyce Peppin Rep. Linda Runbeck Rep. Bob Barrett Rep. Carolyn McElfatrick Rep. Diane Anderson Rep. David Hancock Rep. Rich Murray Rep. Roger Crawford Rep. Sondra Erickson Rep. Gregory Davids Rep. Pamela Myhra Rep. Tim Sanders Rep. Timothy Kelly Rep. Jennifer Loon Rep. Mary Franson Rep. Mike LeMieur Rep. Kurt Daudt Rep. Branden Petersen Rep. Andrea Kieffer Rep. Jim Abeler Rep. Bob Dettmer C-3 Rep. Denny McNamara Rep. Kirk Stensrud Rep. Peggy Scott Rep. Mark Murdock Rep. Keith Downey Rep. Michael Beard Rep. Tara Mack Rep. Sarah Anderson Rep. Dean Urdahl Rep. Steve Gottwalt Rep. Joe McDonald Rep. Mark Buesgens Rep. Joe Hoppe Rep. Joe Schomacker Rep. John Kriesel Rep. Mary Liz Holberg Rep. Tim O'Driscoll Rep. Rod Hamilton Rep. Pat Garofalo Rep. Bob Gunther The following members of the Minnesota State Senate: Sen. Gretchen Hoffman Sen. Sean Nienow C-4 Sen. Mike Parry Sen. David Brown Sen. Roger Chamberlain Sen. Julianne Ortman Sen. Michelle Fischbach, President, Minnesota Senate Sen. Amy Koch, Majority Leader, Minnesota Senate Sen. Geoff Michel, Deputy Majority Leader, Minnesota Senate Sen. Scott Newman Sen. Paul Gazelka Sen. David Hann Sen. Warren Limmer Sen. Dan Hall Sen. Joe Gimse Sen. Dave Thompson Sen. Bill Ingebrigtsen Sen. Pam Wolf Sen. Mike Jungbauer Sen. Ted Daley Sen. Ray Vandeveer Sen. Michelle Benson C-5 Sen. Al DeKruif Counsel for Amici: Hans Bader, Competitive Enterprise Institute; Noah Huffstetler and Rebekah Plowman, Nelson Mullins Riley & Scarborough. /s/Rebekah N. Plowman Rebekah N. Plowman C-6 TABLE OF CONTENTS INTEREST OF AMICI ................................................................................... 1 STATEMENT OF THE ISSUES ................................................................... 1 SUMMARY OF ARGUMENT ...................................................................... 2 ARGUMENT .................................................................................................. 4 I. The Affordable Care Act Is Unconstitutionally Vague and Indefinite ....... 4 A. The ACA’s Ambiguity Renders It Illegitimate Under Spending Clause Jurisprudence, Which Requires That Federal Conditions Be Clear and Definite Enough to Be Contractually Valid and Enforceable .............. 4 B. The ACA’s Ambiguity Leaves States Unable to Knowingly and Voluntarily Consent To Its Conditions, and Its Vagueness Is Aggravated by the Vast Discretion and Virtual Blank Check It Gives to Federal Officials to Implement and Waive Major Provisions ......... 6 1. The Federal Government Has Repeatedly Waived Key Features of the Law, on a Temporary, Ad Hoc Basis. ............................................... 11 2. By Leaving the Federal Government With Unbridled Power to Expand States’ Medicaid Obligations, the ACA Violates Principles Forbidding Illusory and Indeterminate Contracts .................................. 16 C. The ACA’s Costs Are Extremely Unpredictable, Further Preventing States from Being Able to Voluntarily and Knowingly Consent ....... 17 D. The ACA's Complexity Accentuates its Vagueness ........................... 23 E. The ACA’s Ambiguity and Violation of States’ Reasonable Expectations Make Its Pressure More Impermissibly Coercive ........ 25 II. The ACA’s Individual Mandate Cannot Be Justified Under a Cost- Shifting Rationale, and Exceeds Congress’s Power Under the Commerce Clause ............................................................................................................ 27 CONCLUSION ............................................................................................. 29 CERTIFICATE OF COMPLIANCE ............................................................ 31 i CERTIFICATE OF SERVICE ..................................................................... 32 ADDENDUM: ACA CHART BY JOINT ECONOMIC COMMITTEE MINORITY STAFF ENTITLED “YOUR NEW HEALTH CARE SYSTEM” ..................................................................................................... 35 ii TABLE OF CITATIONS Cases Alaska Packers v. Domenico, 117 F. 99 (9th Cir. 1902) ............................... 27 Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006) . 3, 5, 6, 25 Association Ben. Services, Inc. v. Caremark RX, Inc., 493 F.3d 841 (7th Cir. 2007) ............................................................................................................ 9 Barefoot Architect, Inc. v. Bunge, 632 F.3d 822 (3d Cir. 2011) .................. 10 Barnes v. Gorman, 536 U.S. 181 (2002) .................................................... 5, 6 Botts v. State, 604 S.E.2d 512 (Ga. 2004) .................................................... 19 Brady v. United States, 397 U.S. 742 (1970) ................................................. 9 Bryant v. Avado Brands, 187 F.3d 1271 (11th Cir. 1999) ............................. 24 Cheek v. U.S., 498 U.S. 192 (1991) .............................................................. 24 Conseco Finance v. Wilder, 42 S.W.3d 331 (Ky. App. 2001) ..................... 25 Gibbons v. Ogden, 22 U.S. 1 (1824) ............................................................. 29 Gray v. Zurich Insurance, 419 P.2d 168 (Cal. 1966) ................................... 26 Henningsen v. Bloomfield Motors, 161 A.2d 69 (N.J. 1960) ....................... 25 Jerry Rossman Corp. v. C.I.R., 175 F.2d 711 (2nd Cir. 1949) ...................... 24 Laemer v. J. Walter Thompson Co., 435 F.2d 680 (7th Cir. 1970) ............... 27 Livermore v. Heckler, 743 F.2d 1396 (9th Cir. 1984) ................................... 24 Lovey v. Regence Blue Shield, 72 P.3d 877 (Id. 2003) ................................. 24 Matter of T & B General Contracting, 833 F.2d 1455 (11th Cir. 1987) ........ 9 New York v. United States, 505 U.S. 144 (1992) ............................................ 5 Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 (1981) ...... 5, 6, 9 Reiver v. Murdoch & Walsh, 625 F.Supp. 998 (D. Del. 1985) .................... 27 Reno v. ACLU, 521 U.S. 844 (1997) ............................................................ 19 Riehl v. Cambridge Court, 226 P.3d 581 (Mt. 2010) ............................. 10, 26 South Dakota v. Dole, 483 U.S. 203 (1987) .......................................... passim Stevens v. Fidelity & Casualty Co., 377 P.2d 284 (Cal. 1962) .................... 26 Virginia v. Riley, 106 F.3d 559 (4th Cir. 1997) ............................................... 5 Wickard v. Filburn, 317 U.S. 111 (1942) ..................................................... 29 Willie v. Southwestern Bell, 549 P.2d 903 (Kan. 1976) ............................... 11 Other Authorities iii Abelson, Insurer Cuts Health Plans as New Law Takes Hold, N.Y. Times, Oct. 1, 2010, at B1 ..................................................................................... 22 Abelson,
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